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91very much.23CHAIRMAN SOULES:Justice Evans.Thank you, ChiefWe will certainly want to have yourinput and the input of the other court of appeals5judges on these new appellate rules, the harmonized6rules because the courts of appeals are one of the7central focuses of these rules. An effort to try8to get your courts one set of rules, with whatever9variations, may have to be made to accommodate the10differences between the civil and criminal11practice.12harmonious and don't have differences that are not13explained, other than -- well, those were in a14court of -- the Code of Criminal Procedure and the15others evolved through the Rules of Civil16Procedure, but there's no real necessity.17But essentially, rules that areSecondly, we have been addressing, at least18at the COAJ, and will to some extent today, be19addressing the problems with local rules in the20district courts and in the courts of appeals,21differences that also simply, perhaps through22evolution, through independent processes, are23different, but don't have any real reason to be24different.They could be made uniform throughout25the state.So, we will appreciate very much the

101efforts of you and your committees towards helping2us deal with the court of appeals' aspect of that3at least.4Baker of San Antonio to deal with the court5reporter problem that you've addressed.6his proposal or some other will be the one that we7ultimately work out, your suggestions in all those8respects are appreciated and we will try to keep9you informed and hope to get information from you10Whetheras well.1112And we do have a proposal from FrankCHIEF JUSTICE EVANS:Thank you verymuch.13CHAIRMAN SOULES:Thank you, Chief14Justice.15I16and I'd like to welcome him to our meeting.Chief Justice John Hill has come in, andknow that he has some welcoming remarks as well,17CHIEF JUSTICE HILL: Thank you, Luke.18Good morning to all of you, friends all,,nice to19see all of you. Hope to get to visit with you at20the break.21We're going to be calling on this committee22as never before. This is a very important23committee, under utilized, and we want to really24bring it forward and make it very meaningful25because we need your help desperately. We have

t11been given now, under the new Court Administration2Act, new and far-reaching administrative3responsibilities.4Administration Act, which I encourage all of you to5get a copy of and really get into it because it's6heavy and it can't be just a quick once over.7You've really got to get into it and see what it8does.9rely on Ray Judice or someone to help me. I thinkWe have been mandated by the newIt carries a new number, and I'll have to10it's House Bill 1186 but --11MR. ADAMS: 1658.12CHIEF JUSTICE HILL: 1658. It's kind of13interesting how all that happened. The Legislature14works in mysterious ways, and we really -- we beat15our opponents, but we sure didn't beat the system.16And the system just ate us up in the last stages,17but this was one place where the system didn't eat18us up.19this bill which had originally been Senate Bill20586.21I22wasn't in that fight, but in that --232425We were able to use the system and salvageAnd somebody lost their two appellate courts,don't want any responsibility for that because ICHIEF JUSTICE GUITTARD:We were hopingthat you were.CHIEF JUSTICE HILL: I know you were,i

121Judge, and I was trying my best, too. I was trying2to fight so hard for 331 and some other things that3I kind of left that over on your plate. And you4were successful with it. And out of that -- when5those two bills went down, they had it on the6calendar.7substitute our Court Administration Bill under that8banner and bring it on in for a vote and get it9passed.So we are able to virtually justSo, to say everything seems to work in10mysterious ways the last two or three days of the11Legislature.12successful.13So you were successful and we wereThis bill is there and I'm sure will besigned by the Governor and we'll be in business,whether we want to be or not. We're going to beheavily involved in the administration of the17courts as never before at the Supreme Court level.18And that means that's where we need you badly,19because these rules just can't just jump out and be20done, as you know. We've got to work out these new21rules that are mandated in that act for the22administration of our courts.23to have a copy of that handy?2425Does anyone happenCHIEF JUSTICE WALLACE: Gay Curry,Senator Glasgow's administrative assistant back at

1312the back has some.MR. WELLS: I have a question. Senator3Glasgow circulated that through the committee4Senate Bill 354.5CHAIRMAN SOULES:6MR. WELLS:7CHIEF JUSTICE HILL: This is a differentThat's essentially it.Was it passed in that form?8bill than I'm referring to. This is the one that's9dealing with other matters. The Court10Administration Bill -- I'm not prepared, I've just11gotten back in town, and I'm not prepared. I'll12tell you frankly, I am not. So, I'm simply saying13to you I'm not prepared in the sense that I can't14give you chapter and verse right now of what's in15this bill. I do know that it mandates us to set16up, what do you call them, Rules of Governess or17Rules of Administration?18Good morning, Justice Pope,. How are,you,1920And we will, through these rules, be more in21charge -- the courts themselves will be more in22charge of their dockets. Whether you operate in a23county where you have central dockets, or whether24you operated in a county where you have25individualized dockets, these rules will bring us

141into a new era. It's going to be popular with some2people and not so popular with others. If you're a3lawyer that's operated under lawyer diligence all4your life, as most of you have, you're probably not5going to like it all that much. It's directed at6the courts being in charge of their dockets.7Judicial passivity is over.We won't be just8working in terms of the lawyer that's done the best9job of getting the case ready and getting the case10prepared will be the one that will get to trial.11The court's going to be in charge of trying to12marshal the cases on their docket and to bring them13through the system in some sort of orderly way,14much like the federal system. And we'll have tough15rules about dismissal dockets probably every couple16of years.17conferences provided.18opportunities for cases to be disposed of and19face-to-face confrontations that the courts will20arrange.21policies.22favored.23see that pretrials are carried forward and actually24done in these cases. We'll be trying to see that25when a case is set, that something happens and thatWe'll have settlement -- more settlementWe'll have moreWe will have tougher continuanceMotions for continuance will not be veryWe will be in the business of trying to

151it triggers some other event. And there will be2time schedules that will be cranked into the rules.3So, you can see that it means that in our4Civil Rules of Procedure, really, are an additional5group of rules known as Rules of Administration.6We're going to be heavily involved in saying we're7going to try to bring some uniformity, if you8please, that's done under the name of efficiency,9of moving these cases, unclogging these dockets.10And obviously if it's overdone, we'll rush people11to judgment and people will be abused by the very12system we put in place, if we're not careful. On13the other hand, if we don't do it, we're not going14to be doing what the Legislature has mandated us to15do.16One of the.reasons that we're not more17successful, in my opinion, in the Legislature, in18getting what we need, badly need, for our, trial19courts in the way of administrative help and20increased salaries and computer-aided transcription21and all of the things that we've contended for is22that there's still this lingering feeling in the23Legislature on the part of some that we're not24doing a good enough job, that we're not25administering the courts as heavily and properly as

161we ought to be and that until we do that, until we,2as they say, clean up our act and get our show on3the road in terms of the Supreme Court being4heavily involved in seeing that our courts are5administered more efficiently and that the trial6judges are more in charge of their work -- and you7still hear the recurring complaint of the dockets8not being equal or work loads not being equal and9some of the judges not doing their fair share.10I've just been living over there a lot this last11Legislative session, and I'm just here to report to12you, not that any of that's necessarily true, but13that those are the kind of problems that we're14contending with in our efforts to get for our15courts what we need. So, they have loaded up our16boat.17In addition to this, we have judicial18redistricting that will be voted on in November,19first time in, I guess, ever that we've really20bitten the bullet; and it looks like it may happen.21I'm going to get on the program and do all I can to22see that we have it passed. And so, if we will do23our good work now over the next year and implement24these new initiatives that are being placed on us,25that should buy us additional credibility, for one

171thing.2do, and that's to precondition the Legislature for3the fact that our courts are in trouble and we need4help.5force here at this committee level, on the courts,6among our judges, among our lawyers throughout this7state, with citizen input where we can go over8there and be real contenders next time for the9things that we just simply desperately need to move10It should add to what we've been trying toAnd we must build the kind of politicalthe system of justice forward.11But in the meantime, they're saying to us,12"Get this job done." And maybe that means we'll be13more receptive, but only time will tell. But14that's where we are, gentlemen, and you can see15that this is major business we're talking about.16This is no nonsense stuff. This is get your coat17off and roll up your sleeves and let's work it out.18I got nothing to tell and nothing to sell, I'm just19down here trying to get a job done that needs20doing.21that I'm capable of providing to get this job done,22but we cannot do it alone. You have got to get in23here and help us work this out, and I know that you24will.25I'm willing to provide all the leadershipThank you very much and welcome.

181CHAIRMAN SOULES:Mr. Chief Justice,2thank you for those remarks, and I feel sure that3you'll have all the support that energies --4individual energies and joint energies you can get5behind that effort.6I'll have some general matters to attend to7in a little while, but I want to be sure that we8get Judge Guittard accommodated on his time9schedule.I do want to welcome Justice Ray and10Chief Justice Pope to our meeting. They have both11come in.12A committee chaired by Chief Justice13Guittard, which had as its reporters Bill Dorsaneo14and Judge Daley -- Bill essentially having major15input from the civil side and Judge Daley having16principal input from the criminal side. But those17two working together, with Chief Justice Guittard18as chairman, served an interim Senate committee19that was appointed by Senator Glasgow; and his20right-hand person, Gay Curry, is here with us today21and has helped in making distribution of thosematerials.232425And, Gay, we welcome you and thank you forbeing with us.That committee had as its responsibility the

19production of a harmonized set of rules to2accommodate both the criminal and civil appellate3systems, if such a harmonized set of rules could be4produced.5The purpose for that was to underpin the6legislative effort headed by Senator Glasgow to7give the courts -- the Court of Criminal Appeals8rule making authority at least to the extent of its9own appellate rules and to get those out of the10Code of Criminal Procedure so that that court,11together with the Supreme Court of Texas could try12to harmonize their rules. And the Legislature, at13least the sponsors of the bill, didn't seem14convinced that without a set of rules in place or15proposed that appeared to be workable and16substantially so, that the bill to give the Court17of Criminal Appeals that rule making authority18would have a great deal of success. Why ,I'm not19sure.20to understand.21and several Saturdays, we -- and several weekdays22as well, the committee met. And I can't really23imagine, but many, many more hours by the reporters24Bill Dorsaneo and Judge Daley had produced this25work product that you see bound in legal size orBut at any rate, that's what we were givenSo, over a period of a few monthst

2012stapled together in legal size.I want Chief Justice Guittard first to speak,3so that he can go and make his next speech over to4the opinion writing seminar being held for the5courts of appeals.6then we'll have whatever discussion and extensive7discussion to the extent that you all wish to have8input about this effort.9Chief Justice Guittard.101112And then Bill Dorsaneo, andCHIEF JUSTICE GUITTARD:Thank you Mr.Chairman.Perhaps most of you have read the statement13that was -- the three statements that were14published in the January Bar Journal by me and Mr.15Soules and Clifford Brown, concerning these16proposed uniform, or rather harmonized, appellate17rules, and the proposed rules themselves were18published in the February Bar Journal.19The origin of this project, as the chairman20stated, was -- came from Senator Glasgow, for whom21I have conceived a very great respect. When he was22appointed chairman of the Subcommittee on Criminal23Matters of the Select Committee on the -- Interim24Select Committee on the Judiciary, he circulated25all the judges and asked for suggestions about what

211their committee might be working on. And some of2us appellate judges who had gone through the throes3of trying to get adjusted to two systems of4appellate procedure suggested that there should be5an effort to eliminate the unnecessary.6discrepancies between the two systems and to bring7criminal rules in line with the more efficient8civil rules of appellate procedure.9Senator Glasgow took off on that, and he liked thatAnd so,idea so well that he conveyed the idea to the Courtof Criminal Appeals and the Supreme Court that ifthey didn't get together and work out someappellate rules, harmonize appellate rules, the14Legislature was apt to take over the whole project15and prescribe a uniform code. And that didn't set.16That got the attention of both the Supreme Court17and the Court of Criminal Appeals.18And so, as a result of this suggestion, and19at the request of the Subcommittee on Criminal20Matters, the Supreme Court and the Court of21Criminal Appeals adopted a joint -- appointed a22joint advisory committee to draw up a tentative23draft of the proposed rules with the idea, as Luke24indicated, that if we're going to go to the25Legislature, they're going to want to see what thex

2212project's all about.So, on that committee, Luke served as one3member and Rusty McMains and Bill Dorsaneo among4your members.5trial judges, lawyers from both the civil and6criminal practice.7after meeting, I forget how many meetings during8the summer and early fall, I think it was seven or9eight meetings I think we had. And amazingly we10didn't have a single time where we didn't have a11quorum during the middle of the summer. But we12came up with these proposed draft of appellate13rules, and we were under this constraint.14There were also both appellate andAnd so, this is what we've --The court -- the Supreme Court had already15gone through the process of some rather extensive16recent amendments to the civil appellate rules, as17this committee knows as well as anybody, and they18were -- they indicated to us that they were very19reluctant to make any changes, that the Bar20wouldn't stand for any more. And so, one of our21objectives in preparing these rules was to -- not22to change the practice, not to unsettle the lawyers23by some more changes. So, we have adopted that as24our guide post.25rearrange the rules, and in some cases restate themAnd although we have proposed toA

231in language that we thought was a little clearer,2we have not attempted to make a substantial change3in the practice.4The principal change has been on the criminal5side, and that would require a -- that did require6amendments, repeals of certain provisions of the7Code of Criminal Procedure.8did finally pass on the last day of the session.9So, now the Court of Criminal Appeals, as well asAnd those amendments10the Supreme Court, has rule making power with11respect to appellate procedure.12Now, the changes that were in the civil side13are really minor.14familiar with Rules 435 and 438 that has to do with15penalties.16penalty, 10 percent of the amount in controversy,17was meaningless in lots of cases. And we really18needed to expand that penalty. So, we've,19essentially adopted the federal standard while20keeping our standard as to when penalties apply, to21give the court a little more leeway in assessing22penalties in cases of where the appeals really have23-- probably have no merit nor taken for delay. I24believe there's also a limit on the -- well, I'm25not sure about that, I forget all these details.One of them is -- you'reWell, we just thought that a 10 percent

i241On this criminal side, the main problem has2been the preparation of the record. The court of3the Code of Criminal Procedure has had provisions4which have long since been considered obsolete and5have been eliminated in the civil practice,6particularly the requirement that the record be7approved by the trial court and certified by the8trial judge before it's filed in the appellate9court.So, there's a whole series of steps in the10Code of Criminal Procedure, Article 4009, that11caused us on the Appellate Court a great deal of12trouble if we had any -- if we felt any13responsibility for accelerating the process.14Inefficiency is built into the system, and15there were various kinds of things that had to be16done and there were, in many cases, no time limit17specified as to when they should be done. And as a18result the trial judges, who after having tried a19case, naturally don't find these appellate matters20a matter of high priority. They tended to shove21these matters aside, a

Frank Branson 243 15 Committee on Post-Trial Rules Rules 315 through 331 Chairman: Harry Tindall 236 9 Committee on Court of Appeals Rules . Americas, North Tower, Dallas, Texas 75201-2871 MR. SOLOMON CASSEB, JR., Casseb, Strong & Pearl, Inc., 127 East Travis Street, San Antonio, Texas 78205 MS. GAY CURRY, Administrative Assistant